# Yogendra Giri v. State of U.P. & Ors

- **Citation:** (2025) 4 ILRA 260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-04-11
- **Case number:** Writ A No. 23727 of 2018
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/yogendra-giri-v-state-of-u-p-ors-53112
- **Pages:** 7

## Headnote

C.S.C.,
Alok
Sharma,
Rakesh
Kumar
Chaudhary

Service Law-Constitution of India, 1950-
Article
226
-The
Uttar
Pradesh
Cooperative Societies Employees Service
Regulations,
1975
-
Regulation
85-
'SUBLATO FUNDAMENTO CADIT OPUS'---
The findings of the Inquiry Officer/ inquiry
report is liable to be set aside/ quashed
inasmuch as the departmental inquiry has been
conducted and concluded without fixing date,
time and place for oral inquiry and without
affording ample opportunity of hearing to the
petitioner---The
very
foundation
of
the
impugned punishment order is based on the
defective inquiry report which is not liable to be
sustained in the eyes of law, therefore, the
impugned punishment order is liable to be set
aside/ quashed---Impugned order quashed on
the basis of maxim "sublato fundamento
cadit opus", which means that if the very
foundation
of
any
structure
goes,
the
superstructure erected thereon would also fall.
Writ petition allowed. (Para 19) (E-15)

List of Cases referred-:

## Text

260 INDIAN LAW REPORTS ALLAHABAD SERIES
denial of that by the impugned order is
absolutely bad and liable to be set aside.

25. Therefore, under such facts and
circumstances of the case, the impugned
order dated 21.11.2023 is hereby set aside
and writ petition is allowed. No order as
to costs.

26. Respondents are directed to
grant notional seniority to petitioners
placing them at Serial Nos. 196 & 197 in
seniority list alongwith all consequential
benefits. It is further directed that after
fixation
of
notional
seniority,
if
promotion is due on next higher post,
process of promotion shall also be
completed.

27. The aforesaid exercise shall
completed maximum within a period of
two months from the date of production of
certified copy of this order.

28. It is made clear that petitioners
shall not claim any additional emoluments
or special pay as provided in Government
Order dated 21.8.2015 after grant of
notional seniority.
----------
(2025) 4 ILRA 260
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2025
BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ A No. 23727 of 2018

Yogendra Giri ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Meenakshi Singh Parihar, Anwar Ashraf

Counsel for the Respondents:
C.S.C.,
Alok
Sharma,
Rakesh
Kumar
Chaudhary

Service Law-Constitution of India, 1950-
Article
226
-The
Uttar
Pradesh
Cooperative Societies Employees Service
Regulations,
1975
-
Regulation
85-
'SUBLATO FUNDAMENTO CADIT OPUS'---
The findings of the Inquiry Officer/ inquiry
report is liable to be set aside/ quashed
inasmuch as the departmental inquiry has been
conducted and concluded without fixing date,
time and place for oral inquiry and without
affording ample opportunity of hearing to the
petitioner---The
very
foundation
of
the
impugned punishment order is based on the
defective inquiry report which is not liable to be
sustained in the eyes of law, therefore, the
impugned punishment order is liable to be set
aside/ quashed---Impugned order quashed on
the basis of maxim "sublato fundamento
cadit opus", which means that if the very
foundation
of
any
structure
goes,
the
superstructure erected thereon would also fall.
Writ petition allowed. (Para 19) (E-15)

List of Cases referred-:

1. U.P. Cooperative Federation Ltd. & ors.Vs L.P.
Rai reported in (2007) 7 SCC 81

2. Roop Singh Negi Vs Punjab National Bank &
ors. reported in (2009) 2 SCC 570

3. St. of U.P. & ors.Vs Saroj Kumar Sinha
reported in AIR 2010 SC 3131

4. St. of Pun. Vs Davinder Pal Singh Bhullar &
ors.connected with Sumedh Singh Saini Vs
Davinder Pal Singh Bhullar & ors., reported in
(2011) 14 SCC 770

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Shri Anwar Ashfaq,
learned counsel for the petitioner and the
learned Standing Counsel for the opposite
party No.1 as well as Shri Alok Sharma,
learned counsel for the opposite party
Nos.2
to
7.
4 All. Yogenda Giri Vs. State of U.P. & Ors.
261
2. However, no one has appeared
on behalf of the opposite party Nos.8 & 9.

3. By means of this writ petition,
the petitioner has prayed for the following
reliefs:

"(i) to issue a writ, order or
direction in the nature of certiorari
quashing
the
impugned
order
dated
10.08.2018 passed by the opposite party
No.3, as contained in Annexure No.1 to the
writ petition.

(ii) to issue a writ, order or
direction in the nature of certiorari
quashing the decision dated 08.06.2018
and 17.07.2018 taken by the interim
Committee Management of Uttar Pradesh
Rajya Nirman Sahkari Sangh Limited,
Lucknow to dismiss the petitioner from
service and recovery of Rs.7.55 lakhs from
the service benefits/ assets of the petitioner,
after summoning it in original from the
opposite parties.

(iii) to issue a writ, order or
direction in the nature of certiorari
quashing
the
enquiry
report
dated
14.05.2018, as contained in Annexure No.2
to the writ petition.

(iv) to issue a writ, order or
direction in the nature of certiorari
quashing
the
order
of
approval
No.863/Mandal/Anu-1-92,
dated
09.08.2018 passed by the opposite party
No.6, as referred in the impugned order
date 10.08.2018, after summoning in its
original from the opposite parties.

(v) to issue a writ, order or
direction in the nature of mandamus
commanding the opposite parties to allow
the petitioner to work on his post of
Executive Engineer, Uttar Pradesh Rajya
Nirman Sahkair Sangh Limited, Lucknow
till
the
age
of
superannuation
i.e.
31.08.2018 and pay him salary with all
consequential service benefits including the
ritiral benefits."

4. The brief facts of the case are
that the petitioner was initially appointed
on the post of Manager, in General Cadre
of U.P. Cooperative Processing Unit and
Cold Storage Centralized Services with the
approval
of
the
Chairman
of
the
Administrative Committee on ad-hoc basis
on 18.05.1989.

5. The date of superannuation of
the petitioner was 31.08.2018 but before
the date of superannuation the opposite
party No.3 i.e. the Managing Director,
Uttar Pradesh Rajya Nirman Sahkari Sangh
Limited, Lucknow passed the impugned
dismissal order on 10.08.2018 with the
further
direction
that
a
sum
of
Rs.7,55,000/- would be recovered from the
petitioner from his post retiral dues.

6. Since learned counsel for the
petitioner has vehemently submitted that
the impugned punishment order has been
passed on the basis of enquiry report
wherein no date, time and place was fixed
by the Enquiry Officer to conduct the oral
enquiry to prove the charges against the
petitioner, therefore, I am not considering
the other facts of the issue in question.
Further,
instead
of
conducting
the
departmental enquiry strictly in accordance
with law the Enquiry Officer telephonically
instructed
the
Project
Engineer
of
Azamgarh Division to send the material
and the Project Engineer vide his letter
dated 05.10.2017 sent some material/ false
report and on the basis of such report the
Enquiry Officer held that the charge Nos. 1
and 2 are proved.

7. Attention has been drawn
towards paras-54 & 55 of the writ petition,
262 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein the specific recital has been given
to the effect that no date, time and place to
conduct the oral enquiry has been fixed by
the Enquiry Officer. For convenience,
paras-54 & 55 of the writ petition read as
under:-

 "54. That it is further submitted
that the Enquiry Officer had become party
in the disciplinary proceedings as he
instructed on telephone to the Project
Engineer, Azamgarh Division to send the
material and on the telephonic instructions,
the Project Engineer vide his letter dated
05.10.2017 sent the material/ false report
on the basis of which the Enquiry Officer
has held the charges No.1 and 2 proved.
This action of the Enquiry Officer is
unknown to settled principle of disciplinary
proceedings.

55. That it is further submitted
that although the Enquiry Officer has not
mentioned in the enquiry report that any
date, time and place was fixed by him for
conducting
the
oral
enquiry
but
surprisingly, in the impugned order, the
opposite party No.3 has mentioned that the
Enquiry Officer had fixed 17.08.2017 for
personal/ oral hearing but the petitioner
did not avail the same, whereas the correct
fact is that at no point of time any notice,
letter or order was communicated to the
petitioner fixing the date by the Enquiry
Officer on 17.08.2017 or any other date to
appear before him for personal hearing/
oral enquiry."

8. Replying the aforesaid contents
of the petition, the opposite parties in para25 of the counter affidavit could not dispute
the
aforesaid
categoric
submission
regarding fixing the date, time and place
for oral enquiry but has vaguely submitted
that the enquiry against the petitioner was
conducted and concluded in terms of the
Regulation 85 of the Regulations, 1975. It
has no where been indicated in the
aforesaid para as to how and when the date,
time and place for oral enquiry has been
fixed.

9.
Learned
counsel
for
the
respondent-Bank was asked to show any
other para of the counter affidavit wherein
the aforesaid contention of the petitioner
has been replied, but nothing has been
shown to the effect that the Enquiry Officer
had fixed the date, time and place to
conduct an oral enquiry to prove the
charges. Sri Alok Sharma has shown para16 of the counter affidavit wherein it has
been categorically indicated that the
Enquiry
Officer
has
conducted
and
concluded
enquiry
proceeding
after
considering reply of the petitioner and
other relevant papers available in this
regard and submitted enquiry report vide
letter dated 14.05.2018. Sri Sharma has
been confronted on the point that the
enquiry could have not been concluded
only considering the reply of the delinquent
employee but the charges must have been
proved by the department itself on the basis
of oral enquiry fixing the date, time and
place, but Sri Sharma could not defend that
contention of the petitioner, however, he
has submitted that before passing the
impugned order the petitioner has given an
opportunity of hearing seeking explanation
from him issuing show cause notice. For
convenience,
para-25
of
the
counter
affidavit reads as under:-

 "25.
That
the
contents
of
paragraphs-54 & 55 of the writ petition are
not admitted as stated and in reply thereto
the
submissions
made
in
preceding
paragraphs of this counter affidavit are
being reiterated here as correct. As
detailed reply have already been given,
4 All. Yogenda Giri Vs. State of U.P. & Ors.
263
therefore, no need to repeat the same again
to avoid unnecessary lengthiness. The
deponent respectfully submits that after
institution of the enquiry, the Enquiry
Officer directed to the Project Engineer,
Construction Division, Azamgarh to make
him available the necessary information
and in pursuance thereto the Project
Engineer,
Construction
Division,
Azamgarh vide letter dated 05.10.2017
provided
the
information
based
of
documents. The deponent reiterates that the
Enquiry Officer conducted the enquiry as
per Regulation 85 of the U.P. Cooperative
Societies Employees Service Regulations,
1975 and as per this regulation ample
opportunity of defence was allowed to the
petitioner."

10. Notably, in para-4 of the
rejoinder affidavit, the petitioner had again
taken the same ground of defective enquiry
and in para-22 of the rejoinder affidavit the
contents of para-25 of the counter affidavit
have been denied indicating therein that the
departmental enquiry against the petitioner
could have not been conducted in terms of
Regulation
85
of
U.P.
Cooperative
Societies Employees Service Regulations,
1975 (here-in-after referred to as the
"Regulations, 1975"). However, in para-5
of the supplementary counter affidavit
dated 24.03.2025, it has been indicated that
the petitioner was afforded an opportunity
of personal hearing fixing date for
17.08.2017 by means of letter dated
31.07.2017 but the petitioner did not avail
such opportunity.

11. On being further confronted to
Sri Sharma on the point that since the
departmental
enquiry
has
not
been
conducted
and
concluded
strictly
in
accordance
with
law,
therefore,
the
impugned punishment order, which is
dependent upon the enquiry report, may
likely to be set aside, Sri Sharma has stated
that
in
any
case if
the
impugned
punishment order goes on account of faulty
and illegal enquiry report, the department
may be given liberty to conduct the denovo
departmental enquiry from the stage of the
defect in the departmental enquiry even if
the petitioner had already retired. In
support of his aforesaid submission, Sri
Sharma has placed reliance upon the
dictum of the Apex Court rendered in the
case in re:- U.P. Cooperative Federation
Ltd. and others vs. L.P. Rai reported in
(2007) 7 SCC 81 whereby the Apex Court
has held that in case of defective enquiry,
fresh departmental enquiry ought to have
been conducted if the charges are serious.

12. Having heard learned counsel
for the parties and having perused the
material available on record, one fact is
very clear that the Enquiry Officer did not
conduct the departmental enquiry strictly in
accordance with law by fixing the date,
time and place for oral enquiry to prove the
charges which have been levelled against
the petitioner, therefore, the findings of the
Enquiry Officer are illegal inasmuch as
such findings are based on the defective
enquiry.

13. The Apex Court in the case in
re: Roop Singh Negi vs. Punjab National
Bank and others reported in (2009) 2 SCC
570 has held that mere production of
documents is not enough but the contents
of the documentary evidence has to be
proved by examining the witnesses fixing
the date, time and place for oral enquiry.
The Apex Court in the case of Roop Singh
Negi (supra) went to the extent that even if
the delinquent employee confessed his guilt
before the police relating to the same
charge, so called confession itself would
264 INDIAN LAW REPORTS ALLAHABAD SERIES
not be sufficient and some evidence ought
to have been brought on record that the
delinquent employee was involved in the
offence in question. Since the department
has levelled the charges against the
delinquent employee, therefore, it is
responsibility and duty of the department to
prove those charges through oral enquiry.

14. The Apex Court in the case in
re: State of U.P. and others vs. Saroj
Kumar Sinha reported in AIR 2010 SC
3131
has
reiterated
the
aforesaid
proposition of law and held that if the
Enquiry Officer has not fixed the date, time
and place to conduct oral enquiry to
examine the witnesses to prove the charges
against the delinquent employee, the entire
enquiry proceedings would be vitiated
being violative of principles of natural
justice and in total disregard of the fair
play. Therefore, in that case, such enquiry
report would be liable to be set aside/
quashed and the impugned punishment
order, which is based upon the enquiry
report, would also be liable to be set aside/
quashed.

15. Even if any opportunity of
personal
hearing
was
given
to
the
petitioner, though the same has been denied
by the learned counsel for the petitioner,
but that opportunity of personal hearing
would not suffice the purpose inasmuch as
even if the delinquent employee did not
avail such opportunity of personal hearing,
the Enquiry Officer will have to prove the
charges against the employee examining
the witnesses and the documents by fixing
the date, time and place for oral enquiry.
Notably, in the present case, no date time
and place has been fixed by the Enquiry
Officer to conduct oral enquiry to prove the
charges against the petitioner.

16. Since I am of the considered
view that the impugned punishment dated
10.08.2018, which has been issued on the
basis of faulty enquiry report dated
14.05.2018, is non est in the eyes of law
being violative of principles of natural
justice, therefore, I also hold that the
impugned punishment order and the
enquiry report are non est in the eyes of law
and no punishment order can be passed
against the petitioner on the basis of the
aforesaid faulty enquiry report in view of
legal maxim 'SUBLATO FUNDAMENTO
CADIT OPUS'.

17. The Hon'ble Apex Court in re;
State of Punjab Vs. Davinder Pal Singh
Bhullar
and
others
connected
with
Sumedh Singh Saini Vs. Davinder Pal
Singh Bhullar and others, reported in
(2011) 14 SCC 770 has considered the
aforesaid maxim in paras-107 to 111,
which are being reproduced here-inbelow:-

"107. It is a settled legal
proposition that if initial action is not in
consonance with law, all subsequent and
consequential
proceedings
would
fall
through for the reason that illegality strikes
at the root of the order. In such a factsituation,
the
legal
maxim
"sublato
fundamento cadit opus" meaning thereby
that
foundation
being
removed,
structure/work falls, comes into play and
applies on all scores in the present case.

108. In Badrinath v. State of
Tamil Nadu & others, AIR 2000 SC 3243;
and State of Kerala v. Puthenkavu N.S.S.
Karayogam & Anr,, (2001) 10 SCC 191,
this Court observed that once the basis of a
proceeding is gone, all consequential acts,
actions, orders would fall to the ground
automatically
and
this
principle
is
4 All. Yogenda Giri Vs. State of U.P. & Ors.
265
applicable to judicial, quasi-judicial and
administrative proceedings equally.

109. Similarly in Mangal Prasad
Tamoli (dead) by Lrs. v. Narvadeshwar
Mishra (dead) by Lrs. & Ors., (2005) 3
SCC 422, this Court held that if an order at
the initial stage is bad in law, then all
further proceedings, consequent thereto,
will be non est and have to be necessarily
set aside.

110. In C. Albert Morris v. K.
Chandrasekaran & Ors, (2006) 1 SCC 228,
this Court held that a right in law exists
only and only when it has a lawful origin.
(See also: Upen Chandra Gogoi vs. State of
Assam & Ors.,, (1998) 3 SCC 381;
Satchidananda Misra v. State of Orissa &
Ors.,, (2004) 8 SCC 599; Regional
Manager, SBI v. Rakesh Kumar Tewari,,
(2006) 1 SCC 530; and Ritesh Tewari &
Anr. v. State of U.P. & Ors., AIR 2010 SC
3823).

111. Thus, in view of the above,
we are of the considered opinion that the
orders impugned being a nullity, cannot be
sustained. As a consequence, subsequent
proceedings/ orders/ FIR/ investigation
stand automatically vitiated and are liable
to be declared non est."

18. In view of the aforesaid
dictums of the Hon'ble Apex Court
considered in re; Davinder Pal Singh
Bhullar (supra), I am of the considered
opinion that the impugned punishment
order dated 10.08.2018, passed by the
opposite party No.3, contained as Annexure
No.1 to the writ petition, as well as the
enquiry report dated 14.05.2018 are hereby
set aside/ quashed in view of the legal
maxim
'SUBLATO
FUNDAMENTO
CADIT OPUS'.

19. In view of what has been
considered above and also in view of the
settled proposition of law by the Apex
Court, I am of the view that the findings of
the Inquiry Officer/ inquiry report is liable
to be set aside/ quashed inasmuch as the
departmental inquiry has been conducted
and concluded without fixing date, time
and place for oral inquiry and without
affording ample opportunity of hearing to
the petitioner. Since the very foundation of
the impugned punishment order is based on
the defective inquiry report which is not
liable to be sustained in the eyes of law,
therefore, the impugned punishment order
is liable to be set aside/ quashed.
Consequently, the impugned punishment
order dated 10.08.2018 and the enquiry
report dated 14.05.2018 are hereby set
aside/ quashed on the basis of maxim
"sublato fundamento cadit opus", which
means that if the very foundation of any
structure goes, the superstructure erected
thereon would also fall.

20. Since the impugned punishment
order and the enquiry report have been set
aside/ quashed for the reason that the
departmental
enquiry
could
not
be
conducted strictly in accordance with law
and the same is against the settled
proposition of law by the Apex Court in
catena of cases, therefore, the Competent
Authority may take appropriate decision as
to whether any denovo departmental
enquiry may be conducted and concluded
against the petitioner after his retirement as
more than six years and eight months
period have passed since the date of
superannuation of the petitioner. Such
decision may be taken within a period of
three weeks from the date of production of
a certified copy of this order and if no
denovo departmental enquiry is permissible
against the petitioner, who is a retired
employee of the Cooperative Society, he
shall be paid his all consequential service
266 INDIAN LAW REPORTS ALLAHABAD SERIES
benefits within a further period of two
months.

21. In view of the aforesaid
discussions, the instant writ petition is
allowed.

22. Consequences to follow.

23. No order as to the cost.
----------
(2025) 4 ILRA 266
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.04.2025

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 30776 of 2016

Shubham Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Alok Mishra, in Person

Counsel for the Respondents:
C.S.C., Jitendra Singh

Service
Law-Constitution
of
India,
1950- Article 226- Petitioner sought
mandamus seeking direction to the St.
Government to include two year diploma
course of Veterinary Pharmacy as an
essential qualification for appointment on
the post of Veterinary Pharmacist and also
to consider the case of the petitioner for
appointment on the post of Veterinary
Pharmacist considering his two year diploma
course--- The petitioner does not have any
vested right for being appointed on the post
of Veterinary Pharmacist which is a post of
direct recruitment and as per prevailing
procedure, the vacancies of Pharmacists shall
be filled up according to the need of the St.
Government. However, this court being a
Constitutional Court cannot issue a writ in
the nature of mandamus directing the St.
Government to legislate and frame rules as
also to include two year diploma course as
an essential qualification for appointment
on the post of Veterinary Pharmacist in
view of the law laid down by the Supreme
Court. (Para 8) (E-15)

List of Cases referred -:

1.
Supreme
Court
Employees'
Welfare
Association Vs U.O.I.& anr.(1989)4 SCC 187

2. St. of J.& K. Vs A.R. Zakki & ors.(1992)
Supp(1) SCC 548

3.
U.O.I.&
ors.Vs
K.
Pushpavanam
&
ors.2023 LiveLaw (SC) 630

4. St. of U.P. & ors.Vs Association of
Retired Supreme Court and High Court
Judges at Allahabad & ors.[2024]1 S.C.R.
211

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1.Heard Mr. Shubham Kumar,
petitioner in person and Sandeep Sharma,
learned Additional Chief Standing Counsel
for the State.

2.By means of present petition, the
petitioner
has
prayed
for
following
prayer(s) :

"(i) to issue a writ, order or
direction in the nature of Certiorari to
quash
the
impugned
order
dated
14.12.2016 passed by the Respondent No. 1
as contained in Annexure No. 1 to this writ
petition.

(ii) to issue a writ, order or
direction in the nature of Mandamus
commanding the respondents not to give
effect to the impugned order dated
14.12.2016 passed by the Respondent No. 1